Friends of the Court: A Suggestion for the FISA Court on the Nunes Memo

You wouldn’t know it from the endless public discussion of the Nunes Memo and the Democratic response to it, but the House of Representatives does not get to decide whether a FISA application is valid. Congress gets to decide what the legal standards are under FISA. But at the end of the day, the judge of any individual FISA application is not the chairman of the House intelligence committee. It’s not the ranking member either. It’s actually not even the President of the United States either. It’s an institution we haven’t heard from on the allegations in the Nunes Memo: Foreign Intelligence Surveillance Court.

If the Justice Department and the FBI knowingly used an unreliably biased witness to win a FISA warrant against Carter Page, violating his civil liberties in the process, you would therefore expect that there are some judges on the FISC who are concerned. They, after all, are the ones who were misled. They are the ones who signed warrants and renewals based on shoddy information. Conversely, if the judges on the FISC are not hopping mad, you might take that as evidence that they don’t, in fact, feel misled and that the Justice Department and FBI conduct was, after all, reasonably within the obligations of lawyers and investigators before the court.

In last week’s special edition of the Lawfare Podcast, I had the following exchange with David Kris, the country’s leading authority on FISA, concerning whether there was any way to make public whatever discussion takes place between the FISC and the government on this matter:

Wittes: [I]f I were at either DOJ in your former position, that is head of NSD, or at the [FBI], I’d be looking at this and saying “wait a minute, the House Intelligence Committee isn’t ultimately the actor who gets to decide whether our warrant application was defective. That job belongs to the FISC.” My temptation would be to file a public document with the FISC saying, “Of course the Justice Department and the FBI is prepared to answer any questions or provide any information that the court might need in response . . . to this disclosure by the president and by the House intelligence committee,” and allow the FISC to use that if it so chose to maybe issue a one sentence order that says, “no thanks. We’re good”—or else to give the FISC the opportunity, by filing that, to say something in public. I’m wondering how plausible you think this is?

Kris: I think that’s quite plausible. But first I think it is very likely that the government was updating the court across these four renewals that have been disclosed . . . as to the changing nature of the situation . . . and I would further imagine that now, the government is either on its way to the court or thinking about how to go to the court to officially advise the court of this memo (which I’m sure the judges have read in the newspaper). . . . So I would expect first that the government has provided notice updates as things evolve, which is the normal thing to do, and that they will now have to go to the court and . . . have some formal vehicle for acknowledging this and giving the court an opportunity to weigh in. The part that I don’t know, and I think is part of a larger challenge here, is whether and to what extent any or all of that, either the fact of the interaction with the court and the fact of the court’s response, or even the substance of it will be made public. This is part of a conundrum that the government is in here, similar to one that it’s faced in, . . . for example, the Snowden situation, where certain information is made public and then in order to provide a fuller picture, the government is forced to exacerbate the classification problem and release further information that would be classified and it has to pay a price then in sources and methods. . . . That balance between those competing interests puts the government in a little bit of a box. . . . It may be easier to solve in correspondence with the court, and I can imagine ways the court could go public with a statement that didn’t compromise sources and methods, so there may be a way out of it here. But it’s part of a larger problem that can’t be ignored whenever these types of situations come up.

Sophia Brill, writing on Lawfare Tuesday, was thinking along similar lines. Her post outlines several procedural mechanisms by which the court could publicly issue an order addressing the Nunes memo’s claims. Such a disclosure would be highly unusual, she acknowledges—but “the FISC is uniquely positioned to resolve this question [of whether the allegations in the Nunes memo are true] while still avoiding the hemorrhaging of additional classified information.”

After thinking about my exchange with Kris over the weekend, I decided it would be useful to impress upon the FISC the value to the debate of, to the extent possible, the court’s announcing in public whatever action—if any—it takes in response to this matter. If the court already has some kind of proceeding ongoing to satisfy itself that the government’s conduct before it was appropriate, I reasoned, all it would need to do is announce its disposition publicly. If Nunes is right, the fact of some remedial or corrective action would speak loudly. If he’s full of beans—as I suspect—the fact of none would too. If no proceeding even exists, that would really say something.

The idea here is emphatically not to trigger the release of more classified material. There’s been enough of that. It is, rather, simply get a public answer to a very simple question: Does the institution actually responsible for supervising the FISA surveillance of Carter Page, the one that actually issued the warrant and renewed it multiple times, have concerns about how those orders were procured?

On February 2, 2018, Congressman Devin Nunes, Chairman of the House Permanent Select Committee on Intelligence (“HPSCI” or “the Committee”), released to the public a memorandum (“the Nunes Memo” or “the memo”) calling into question the candor of the Justice Department in an application submitted to and approved by this Court. The release of the memo followed the President’s decision to declassify the memo. The President and some Members of Congress have cited the claims in the Nunes Memo as demonstrating that the Justice Department and FBI are politically biased and have abused the FISA process. Those claims have undermined the public’s trust in the proceedings before this Court.

This Court, like other Article III tribunals, has inherent authority to take action to protect the integrity of proceedings before it. Accordingly, in light of the claims levelled in the Nunes Memo, this Court may be engaged in some sort of proceeding to review whether the Justice Department committed misconduct in this matter by withholding pertinent information from the Court. Amici respectfully ask the Court to make public the disposition of any such proceeding. If the Court concludes that the Justice Department acted with political bias or violated rules of professional responsibility in this matter, the Court should inform the public of that and of any appropriate remedial action. Of equal importance, if the Court does not believe it was misled, then the Court should inform the public of that to correct the appearance of impropriety. Just as the public has a right to know whether the Justice Department has abused the FISA process, it has an equally compelling right to know whether the intelligence oversight process has potentially been abused by the people’s representatives in Congress and by the President. And finally, to the extent that no proceeding exists to review the Department of Justice’s conduct in this matter, Amici ask the Court to publicly clarify that point as well.

Amici appreciate that this Court’s proceedings are typically and necessarily conducted in a classified setting and closed off to the public. Amici respect the need for secrecy in this Court’s day-to-day work. In this case, however, the President and the House Committee have already disclosed the target of a surveillance order approved by this Court. Given these disclosures, this Court can, simply by making public an unclassified account of its own handling of the matter, provide the public the clarity required to preserve confidence in FISA proceedings without revealing any additional classified information.